With moves afoot in NSW to end what is known as "forced trans* divorce", trans woman and advocate Sally Goldner explains why existing laws are heartless and how they impact on loving couples.

IN 2011, Paige Phoenix went on the X-Factor in Australia and outed himself to the world as a trans man. His debut song was a cover of INXS’ Never Tear Us Apart. Unfortunately, current laws in Australia are creating the scenario that marriages are being torn apart — even when two people love one another and have no irreconcilable differences. How is this happening?

It comes down to the scenario colloquially called “forced trans* divorce”. This is where a trans*/gender diverse (TGD) person enters a marriage before realising their need to affirm their identity in a way that, by and large, differs from societal expectations given the person’s body at birth.

Marriage in Australia under the Marriage Act 1961 and following the 2004 amendments to the Act is defined as being between a man and a woman or colloquially, “heterosexual marriage”. To expand on the legal and colloquial definitions, this could be defined as “where one person has male on their birth certificate and the other has female on their birth certificate at the time of entering into the marriage”.

In the above scenario, the couple can remain married and the person experiencing TGD issues can complete any necessary hormonal and/or surgical treatment. However, the couple is often, if not always, told they have to divorce before the TGD person can change the marker on their birth certificate at the state/territory Births, Deaths and Marriages registry. The major positive exception to this is the Australian Capital Territory who updated their laws in this area more than a year ago.

The current situation therefore places most of these couples in a horrible no-win situation. Either the TGD person has a birth certificate that is, in simple terms, wrong, or the couple divorces while having no irreconcilable differences (and possibly while having to perjure themselves in the Family Court so the TGD person can change their birth certificate). In addition, divorce clearly creates financial discrimination regarding having to pay legal costs.

There’s also another angle to this situation. Article 16(2) of the UN Declaration of Human Rights states that “marriage shall be entered into only with the free and full consent of the intending spouses”. Would it be fair to imply from that article, marriage should equally be ended with the full consent, too? It simply cannot be called full consent where a couple is reluctantly forced to end their marriage only because of outdated assumptions in rusty and dusty legal frameworks that are simply unable to recognise the full and true diversity of relationships in 21st century Australia.

Coming back to Paige, there’s a story that is a different part of the same ball park. Paige told the story at a Melbourne Equal Love rally a year ago of how his marriage was torn apart because he can’t change his birth certificate to male for medical reasons. And because marriage is based on birth certificates, his life and his relationship was torn apart.

This doesn’t affect me personally. I’m not in a relationship at this time (I’d like to be, so feel free to go “awwww”). If I were, the desire to marry would be about what any partner and I would want to do. The thing is, to see my TGD siblings and their loved ones being hurt tears me apart.

And that’s a key point here. It’s not about anyone’s personal views. It’s about everyone having the right to equality regarding relationships, regardless of details such as sexual orientation, gender identity or experiencing intersex. For information on marriage and intersex, click here.

To make this all simple, fair, and ultimately equal, we need federal marriage equality law that lets couples marry regardless of a letter in a box on a birth certificate. And when we get to that point, it will be case of people choosing, if they want, to gently part — rather than truly-loving couples being torn apart.

Sally Goldner is the Executive Director of Transgender Victoria. Follow the organisation on Twitter via @transgendervic

**This article first appeared in the August issue of the Star Observer. The September issue will hit the streets this Thursday (August 21) in Melbourne, Sydney, Brisbane, Adelaide and Canberra. Click here to find out where you can grab your free copy.